My husband entered the United States without inspection in 2000. We met in 2006 and were married in 2008. Now, my husband would like to pursue a green card.

Question:

I am a U.S. citizen. My husband, a citizen of Mexico, entered the United States without being inspected in 2000. We met in 2006 and were married in 2008. We have three children that were all born in the U.S. Now, my husband would like to pursue a green card. How will his entry and lengthy unlawful presence affect his chance of obtaining a green card?

Answer:

Thank you for your question. Based on the information you provided above, there are several issues that need to be addressed before your husband can proceed with the green card process.

Unlawful Presence/ I-601, Application for Waiver of Grounds of Inadmissibility

First, since your husband entered the U.S. without inspection, and has lived in the U.S without status for such a long period of time, he is subject to a ten-year bar for unlawful presence under Immigration and Nationality Act (INA) § 212(a)(9)(B)(i)(II). The ten-year bar applies to individuals who have been unlawfully present in the U.S. for a period of one year or more. This will certainly become an issue when your husband departs the U.S. to return to Mexico to attend his immigrant visa interview, because once he leaves the U.S., his departure will trigger the ten-year bar, making him unable to reenter the U.S. for a period of ten years without a waiver.

Second, due to your husband’s unlawful presence bar, he will need an I-601, Application for Waiver of Grounds of Inadmissibility. The waiver must establish that you and/or your children will suffer “extreme hardship” if your husband is unable to reenter the country. Extreme hardship can be demonstrated in many ways. One particularly effective example is evidence of mental health issues relating to the separation from your husband, such as severe depression and/or anxiety. Remember, extreme hardship must be proven as to the U.S. citizen relative, not the waiver applicant.

I-601A, Application for Provisional Unlawful Presence Waiver

Beginning in 2013, U.S. Citizenship and Immigration Services (USCIS) cleared the way for immigrant visa applicants who were spouses, children, or parents of U.S. citizens (immediate relatives) to apply for provisional unlawful presence waivers before they departed the United States. The provisional unlawful presence waiver process allows individuals, who only need a waiver of inadmissibility for unlawful presence, to apply for a waiver in the United States before they departed for their immigrant visa interviews at a U.S. embassy or consulate abroad. This process reduces the amount of time U.S. citizens are separated from their immediate relatives while those family members are obtaining immigrant visas to become lawful permanent residents.

Unfortunately, if your husband’s immigrant waiver application is denied, his options moving forward with the green card process are very limited (barring the future passage of any form of immigration reform). Before you and your husband make any decision on a course of action, I encourage you to call the office and schedule a consultation. At that time, we will be able to discuss your husband’s case in greater detail.